Google+ Followers

Tuesday, June 27, 2017

Last
week in an opinion that has been almost universally condemned, the United State
Supreme Court struck yet another blow to private property rights in this
country. In Murr v. Wisconsin, the constitutional
requirement that private property can't be taken for public use "without
just compensation" (ie. “Takings Clause”) was at issue. Our founding fathers so feared the power
of the government to take private property that they included what is known as
the “Takings Clause” in the Fifth Amendment of the Constitution. The
Takings Clause made early America different from the rest of world, in that
finally it was no longer permissible for the sovereign to simply take a
citizen’s property without redress.

For
the last century, the Supreme Court recognized when the government goes
too far in regulating property making it economically unusable, the government
has “taken property for public use” and must compensate the
owner. The question in takings cases has always been how do you decide when the
government has gone too far. It was hoped that Murr decision would
once and for all, provide the clarity necessary to define when the government
has gone too far and taken private property. Sadly, Murr
accomplishes just the opposite.

In
the late 1990’s the Murr’s took title to two separate, but adjoining lots which the
Murr’s father had purchased in the 1960’s.
One lot had a cabin, the second lot was vacant. The Murr’s problems began in 2004 when the
family tried to sell the vacant lot to pay for improvements to their cabin on
the lot next door.

County
officials blocked the Murr’s sale of the vacant lot, citing 1976 regulations
that treated the two lots as a single parcel which couldn’t be
divided. The family claimed those rules stripped the vacant land of its value
and asked the government for compensation of $400,000.00 since they couldn’t
build on their vacant lot. In contrast, the government argued it's fair to view
both lots as a whole, despite the fact they were separate, and said the family
was owed nothing.

In a 5-3 decision (Justice Neil Gorsuch did not participate
because he was not yet on the Court when the case was argued), the majority
ruled in favor of Wisconsin but rejected it’s position that courts should
simply treat contiguous parcels as one parcel anytime state law says they
should be. The majority also rejected the Murr’s position which was
that there should be a strong presumption in favor of analyzing each parcel separately. Instead,
the Court further muddied the waters regarding what constitutes a taking by
creating a new, and horribly vague multifactor balancing test which is sure to
create nothing but confusion, uncertainty, and more litigation.

In
his dissent, Chief Justice John Roberts recognized the majority opinion did
absolutely nothing to clarify the state of takings law (as should be a guiding
principle of the Supreme Court), but rather undermined the Constitution's
protections for private property owners by giving government the ability to
expand its power. Roberts also recognized, “today’s decision knocks
the definition of ‘private property’ loose from its foundation on stable state
law rules.” He went on to excoriate the majority saying their
opinion “compromises the Takings Clause as a barrier between individuals and
the press of the public interest.” Roberts instead favored adopting
a presumption of treating each parcel separately contending there is no good reason for
concluding a regulation which qualifies as a taking for a one parcel shouldn’t
be a taking for another parcel right next door.

At
the end of the day, the majority forgot or ignored the real question which is
supposed to be asked in a takings cases, that being; what property rights has
the government taken away from the owner?Not how much property did the government leave him. The plain meaning of
the text of the Fifth Amendment requires compensation whenever private property
is “taken,” and does not create exceptions for situations where the owner loses
only part of her rights. Sadly, Murr ignores the plain meaning of the Constitution
in favor of the ever increasing trend of judicial invention. As a result of Murr’s
judicial invention, government at all levels will now be emboldened to further
eviscerate private property rights in favor of the “public interest”.Property owners will be left with no choice
but to look to property rights lawyers to become more creative in manipulating
their land holdings to avoid common ownership of property.